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FBAR filing date is extended for certain filers until April 18, 2018

Due to the lack of final regulations, FinCEN extends FBAR filing date

TAX ALERT
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January 16, 2017

Patti Burquest, Alina Solodchikova, Ryan Carnes

The U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) recently released Notice 2016-1, extending the deadline to file Form 114, Report of Foreign Bank and Financial Accounts (FBAR), until April 18, 2018. The extension applies to individuals with signatory authority during 2016. Note that similarly situated individuals with signatory authority during calendar years 2010 through 2015 that previously received an extension pursuant to FinCEN notices relating to those years are also granted an extension of time to file the FBAR forms for each of those years until April 18, 2018. See our Sept. 4, 2015, alert, New FBAR filing due date begin in 2017 and extensions will be permitted.

This current extension per Notice 2016-1 applies to a U.S. person who has signature authority over, but no financial interst in, a foreign financial account and is either:

An employee or officer of a U.S. public company, or certain U.S. regulated entities

An employee or officer of a controlled person (non-U.S. subsidiary, non-corporate entity etc.) of a U.S. public company, a U.S. subsidiary of a U.S. public company, or certain U.S. regulated entities

An employee or officer of an investment adviser registered with the Securities and Exchange Commission who has signature or other authority over, but no financial interest in, a foreign financial account of persons that are not investment companies registered under the Investment Company Act of 1940

For FBAR purposes, a controlled person is a U.S. or foreign entity that is more than 50 percent owned (directly or indirectly) by the U.S. entity (public company, U.S. subsidiary of a U.S. public company).

All other filers must still file the FBAR form by April 17, 2017, with an option for an automatic extension until Oct. 15, 2017. There is no mechanism to request an automatic extension, thus it will be automatically granted to all filers for this filing year who do not file the FBAR by April 17, 2017.

The requirement to file an FBAR extends to all U.S. persons that hold financial interest in, or signature or other authority over, a foreign financial account with the value on the account of more then $10,000 at any time during the year.

FinCEN’s Notice 2016-1 references proposed regulations issued on March 10, 2016, that would clarify and exempt certain U.S. persons from reporting requirements. For example, the proposed regulations would:

Eliminate the requirement for officers, employees and agents of U.S. enitities to report signature authority over entity-owned financial accounts for which they have no financial interest if such accounts are already required to be reported by their employer or any other entity within the corporate structure. The proposed regulations would require all officers, employees or agents with signature authority over foreign accounts to maintain such information for five years and make it available to FinCEN upon request.

Remove special reporting provisions for filers who have more than 25 foreign financial accounts. This will allow such filers to exclude certain information that will be provided by the filers with fewer than 25 accounts.

Align the FBAR filing due date with the due date for filing individual income tax returns.

The proposed regulations are still in the proposed form, and until the regulations become final the FBAR filing obligations remain in effect and subject to extension provided in Notice 2016-1 and the similar annual notices issued since 2011. FinCEN did not announce when the proposed regulations would be finalized. Once finalized, regulations will provide a significant relief from the filing requirements to a broder group of individuals than those eligible for the extension pursuant to Notice 2016-1.

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